FILED

United States Court of Appeals

Tenth Circuit

October 14, 2008

UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 08-2023
(D. of N.M.)

LORENZO MOLINA-RASCON,

(D.C. No. CR-07-1414-MCA)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **

Lorenzo Molina-Rascon pleaded guilty to unlawful entry by a deported

alien previously convicted of an aggravated felony. The district court sentenced
him to seventy months imprisonment followed by two years of supervised
release. After Molina-Rascon filed a notice of appeal, his appointed counsel filed
an Anders brief and motion to withdraw. Molina-Rascon filed a pro se response
*

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

to the Anders brief arguing several errors at the plea and sentencing proceedings
and ineffective assistance of counsel. He also filed a motion to terminate his
attorney and appoint new counsel. The government declined to file a brief.
For the reasons set forth below, we discern no meritorious issues for
appeal. We therefore GRANT the motion to withdraw, DENY the motion to
appoint new counsel, and DISMISS the appeal.
I. Background
In May 2007, the United States Border Patrol apprehended Molina-Rascon
and arrested him after he admitted to being in the United States illegally. A
records check revealed that he had been deported to Mexico in December 2006
after having been convicted of aggravated felony assault.
Molina-Rascon pleaded guilty to one count of unlawful reentry by a
deported alien previously convicted of an aggravated felony, a violation of 8
U.S.C. 1326(a) and 8 U.S.C. 1326(b)(2). The Presentence Report (PSR)
calculated a total offense level of 21 (a base offense level of 8, a 16-level
enhancement because he was previously deported after being convicted of a
felony that is a crime of violence, and a 3-level reduction for acceptance of
responsibility) and a criminal history category of V (for a series of trespass, theft,
assault, and driving-related crimes). This yielded a guideline range of 7087
months.

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Molina-Rascon raised three relevant objections to the criminal history

section of his PSR. First, he argued he could not have pleaded guilty to the
criminal trespass charges because he was not in court on the date specified in the
PSR. Second, he argued the charges had been consolidated for a plea and the
criminal history points should not be applied for both. Third, he argued that a
misdemeanor shoplifting conviction in the PSR did not warrant a criminal history
point because he was not represented by counsel.
The district court rejected each of these objections at the sentencing
hearing. As to the first, the district court noted the United States Probation Office
had produced state court documents concerning the criminal trespass charges,
each bearing Molina-Rascons signature on the date in question. As to the second
objection, the court observed that prior sentences are counted separately under the
United States Sentencing Guidelines (USSG) if, like here, the sentences were
imposed for offenses separated by an intervening arrest. USSG 4A1.2(a)(2). 1
And as to his third objection, the background to USSG 4A1.2 provides that
prior uncounseled misdemeanor sentences where imprisonment is not imposed,
such as Molina-Rascons fine for shoplifting, count toward the criminal history

The PSR Addendum observed that revisions in the 2007 Guidelines

Manual would not have counted these two convictions. The addendum noted,
however, that these revisions would not have changed Molina-Rascons criminal
history score since these two points were never originally considered. See USSG
4A1.1(c) (maximum of four such points can be counted altogether).
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score. The district court adopted the PSRs 7087 month guideline range and
later imposed a 70-month sentence. 2
After Molina-Rascon appealed, his attorney filed an Anders brief. Under
Anders v. California, court-appointed defense counsel having made a
conscientious examination of an appeal but finding it wholly frivolous may
file a brief with the court requesting permission to withdraw. 386 U.S. 738, 744
(1967). Counsel seeking to withdraw must inform the court of anything in the
record that might arguably support the appeal, and the defendant is given an
opportunity to raise any points that he chooses. Id. Then the court, after a full
examination of all the proceedings, . . . decide[s] whether the case is wholly
frivolous. Id.
In his Anders brief, counsel argues only that the 70-month sentence was
procedurally unreasonable because the district court failed to adequately consider
the 18 U.S.C. 3553(a) factors. Aplt Br. at 56. Molina-Rascons pro se
response to the Anders brief raises three other arguments: (1) his guilty plea was
invalid and counsel coached him to say yes in his plea colloquy with the court;
(2) he never saw the PSR before sentencing as required by Federal Rule of
Criminal Procedure 32; and (3) counsel provided ineffective assistance,

Neither Molina-Rascon nor his attorney argue on appeal that the district
court erred in its adjudication of these objections.
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particularly by failing to challenge the validity of the 16-level guideline

enhancement for aggravated assault. 3
Anders requires that we evaluate each of these arguments in light of the full
record. 386 U.S. at 744.
II. Analysis
A. Counsels Anders Brief Argument
Molina-Rascons counsel asserts the record could support an argument that
the 70-month sentence was procedurally unreasonable because the district court
relied only on the Guidelines and failed to adequately consider other 3553(a)
factors. Aplt Br. at 56. We disagree.
A sentencing court is required to provide reasons for imposing a particular
sentence. 18 U.S.C. 3553(c); see also Gall v. United States, 128 S. Ct. 586, 597
(2007). When a defendant makes a non-frivolous argument for a belowGuidelines sentence, but receives a within-Guidelines sentence, the district court
must provide the appellate court with a record by which this court can discern
whether the district court considered the applicable 18 U.S.C. 3553(a) factors.
United States v. Traxler, 477 F.3d 1243, 1249 (10th Cir. 2007).

We have attempted to discern the various arguments in Molina-Rascons

pro se response and note that we give pro se responses solicitous consideration.
See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
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After independently reviewing the record, we conclude the district court

adequately considered the 3553(a) factors in arriving at its sentence. Before
sentencing, Molina-Rascon argued for a downward variance because his prior
criminal acts were more like nuisance[s] and because he needed to care for his
ill mother. R. Vol. IV at 67. In imposing its sentence, the district court noted
the Guidelines are advisory, emphasized Molina-Rascons very specific
[violent] criminal history, rejected his caretaker argument, and found that a 70month sentence adequately serves to protect the public, . . . promotes respect for
the law, . . . takes into account his history and characteristics, . . . reflects the
seriousness of the offense and . . . provide[s] adequate deterren[ce]. R. Vol. IV
at 8.
Nothing in the record indicates the district courts sentencing determination
was procedurally unreasonable for failure to consider the 3553(a) factors.
B. Pro Se Arguments
Molina-Rascon argues first that his guilty plea was invalid and that his
counsel coached him to say yes in his plea colloquy with the court.
A valid guilty plea must be knowingly, intelligently, and voluntarily made.
See Brady v. United States, 397 U.S. 742, 748 (1970); United States v. Gigot, 147
F.3d 1193, 1197 (10th Cir. 1998); Fed. R. Crim. P. 11. Molina-Rascon entered
his guilty plea knowingly and voluntarily: the record indicates he understood his
plea, pleaded without coercion, understood the maximum possible sentence,
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understood his waiver of certain constitutional rights, and agreed that the
recitation of the facts was correct. R. Vol. III at 58. Other than the bare
allegation his attorney improperly coached him, Molina-Rascon has failed to put
forward any argument or evidence that would place the validity of the plea in
doubt. Any appeal on these grounds would therefore be meritless.
Molina-Rascons second pro se argument is that he did not review the PSR
at least 35 days before sentencing as required by Federal Rule of Criminal
Procedure 32(e)(2). The 35-day required notice, however, is easily established
here. The sentencing hearing was held on January 15, 2008. Not only did
Molina-Rascons attorney indicate he reviewed the PSR with his client on
November 9, 2007, but he also filed specific objections to the PSR criminal
history calculations on November 26, 2007. 4 Molina-Rascon does not explain
how counsel could have made the specific objections that he did without first
having reviewed the PSR with his client. Any appeal on these grounds is
therefore without merit.
Molina-Rascons third argument is that counsel provided ineffective
assistance in numerous ways, but particularly in failing to challenge the validity
of the 16-level guideline enhancement for aggravated assault.

These objections were detailed in Part I (Background).

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We have previously held that ineffective assistance of counsel claims

should generally be pursued in collateral proceedings rather than on direct appeal.
See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). We will
consider ineffective assistance of counsel claims on direct appeal only in the rare
case where a fully developed factual record on the issue of ineffectiveness is
already before this court. United States v. Galloway, 56 F.3d 1239, 124041
(10th Cir. 1995) (en banc); United States v. Delacruz-Soto, 414 F.3d 1158, 1168
(10th Cir. 2005) (noting that claims brought on direct appeal are presumptively
dismissible, and virtually all will be dismissed) (citation omitted). In this case,
we see no reason to depart from the general rule. 5
C. Molina-Rascons Motion to Appoint New Counsel
Molina-Rascon also filed a motion to terminate his attorney and to appoint
new counsel on the direct appeal. To the extent Molina-Rascon requests a new
attorney based on his attorneys filing of an Anders brief, we note that the mere
filing of such a brief does not provide a defendant with the right to the
appointment of a new attorney. Delacruz-Soto, 414 F.3d at 1168 n.6 (citing
Anders, 386 U.S. at 744). Only if after a full examination of the appellate record
the court finds legal points arguable on their merits must it afford the indigent

Even assuming that there is sufficient evidence on the record to challenge

the 16-level crime of violence enhancement, we note that Molina-Rascons
conviction for aggravated assault is one of the offenses explicitly defined as a
crime of violence under USSG 2L1.2. Thus it is clear this claim has no merit.
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the assistance of counsel to argue the appeal. Id. (quoting Anders, 386 U.S. at
744). Because we find no legal points arguable on their merits here, we deny
Molina-Rascons motion for appointment of new counsel.
III. Conclusion
We have conducted a full examination of the record as required by Anders
and conclude that Molina-Rascons appeal is without merit. Accordingly, we
GRANT appellate counsels request to withdraw, DENY appellants motion for
appointment of new counsel, and DISMISS the appeal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge

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